So You Don’t Need To Make A Will? Think Again!

Don’t make the mistake of thinking that you don’t need a valid and binding Will.

It is surprising the number of people who don’t have a Will. When asked why, the answers are quite varied – “I don’t have the time”; “only old people need a Will”; “If I make a Will I might die”; and so on. Unfortunately, the failure to make a valid Will can often cause significant legal and financial problems for the deceased person’s family and business operations.

No Will

When a person dies without a Will, he or she is said to have died intestate. When this happens, how the assets will be distributed is determined by legislation. This can often have dire consequences. For example, if the family home is owned by the deceased spouse, the surviving spouse will have to buy the house from the Estate. If the surviving spouse can’t afford to buy the house – because both spouses thought she should stay at home to care for their young children, for example – the house may have to be sold and the family forced to move away from family and friends. Such an outcome can easily be avoided by a properly drafted Will. Similarly, the laws of intestacy direct that, if the deceased left children, the surviving spouse will receive the first $100,000.00 and one-third of the deceased’s person’s Estate and the other two-thirds will go to the children. It is unlikely that the deceased person would want to put his/her partner in a position of financial hardship, and yet this would probably be the result if the Estate were to be distributed according the governing law.

Similarly, the law will determine who is responsible for distributing the Estate – and it may be someone that you would never choose.

There is also the very real possibility that a member of the deceased’s extended family – a parent, sibling, aunt, uncle or even a cousin, for example – for whom the deceased person would not contemplated making provision (eg, because the family member is financially secure, or is a person from whom the deceased person is estranged, or is a distant relative whom the deceased does not even know) might end up receiving a part or the whole of the deceased person’s assets.

A properly drafted Will enables a person to give directions on how, by whom and to whom his/her Estate is to be distributed.

Home-made Wills

It is also surprising the number of people who decide to do it themselves. Most people would never consider trying to do the electrical work in their house or effect mechanical repairs to their car, and yet they are prepared to try to “save a few dollars” by drafting their own Wills – either using a will-kit or without any guidance at all.

Very few Wills that have not been prepared and witnessed by a solicitor are free of error. The mistakes can vary from failure to comply with signing and witnessing requirements, to drafting errors. The problems arising from Peter Brock’s failure to have a validly executed Will are well known. What is probably not so well known is that substantial legal costs would have been incurred in trying to establish which, if any, of the documents found after his death could be treated as his valid Will.
The “cheap” Will can often cost thousands of dollars in trying to correct its defects. And, sometimes, those defects are so serious that the document will be ruled not to be a Will at all.